Second Amendment group sues Chief Chitwood, Daytona, over seized guns

Published: Sunday, May 26, 2013 at 6:45 p.m.

Last Modified: Sunday, May 26, 2013 at 8:53 p.m.

DAYTONA BEACH — A Second Amendment group is suing the city of Daytona Beach on behalf of a combat veteran whose firearms the group claims were seized illegally by police.

Sean Caranna, executive director of Florida Carry Inc., also said the U.S. Army veteran's Second Amendment rights had been violated and that police had no warrant when they entered the man's home and confiscated 16 firearms. The veteran, whom Caranna would not name, served three tours of duty in Iraq and Afghanistan.

But Police Chief Mike Chitwood said Friday that the guns — which are being kept at police headquarters — were taken for safekeeping the night 26-year-old Anthony Bontempo threatened to commit suicide.

The chief said there was no need for a warrant because the guns were not taken for evidence, but for "safekeeping."

"He was not arrested, he was taken under the Baker Act," Chitwood said. "This was not a criminal case, so we did not need a warrant." Florida's Baker Act states that an individual can be taken into custody and placed under psychiatric care for up to 72 hours if the person is considered a danger to himself or herself, or others.

Caranna, who lives in Port Orange, said the veteran was released from Halifax Health Medical Center the next day when a doctor declared Bontempo was not a threat to himself.

The lawsuit — filed Friday and similar to others filed around the state — says Bontempo has not been declared "mentally defective" as defined under Florida law, and therefore his guns should be returned. The lawsuit claims that police are hanging their refusal on another state statute that prohibits anyone from giving weapons to a person of "unsound mind."

Chitwood said Bontempo went to the Police Department after he was released from Halifax and asked for his guns. When asked to produce his mental health records, Chitwood said Bontempo came back with a letter from a doctor who diagnosed him with post traumatic stress disorder, alcoholism and systematic personality disorder.

"I said no way is he getting his guns back," Chitwood said. "I can't allow this guy to go ballistic on himself or other people. If that happens then everyone will ask why we gave him the guns back."

A Daytona Beach police incident report shows that in the early morning hours of Dec. 23, 2012, Bontempo called the Crisis Center hot line and told an employee there that he had loaded weapons. He also said that if she called police, he would shoot himself, the report shows.

After a few minutes, Bontempo stopped talking and just cried, the report shows. The Crisis Center employee got back on the line with him and convinced Bontempo to walk outside where police were waiting, the report shows.

At that point, Bontempo, according to the report, told officers that he had several guns hidden inside the house and lying on the bed. Police entered the residence and took all the weapons, as well as bows and arrows, and stored them at the Police Department.

Chitwood, who along with Mayor Derrick Henry are named as defendants in the suit, said another reason the firearms were taken is because the house was left empty and if someone broke in, "Next thing you know we'll have 16 illegal guns on the street."

Caranna, however, says police went too far and that the veteran -- referred to as "A.B." in the lawsuit -- simply had "a few too many to drink" that evening and was having a bad night.

"I can understand seizing a gun if it's on the person, but going into the house and taking all the guns is against the law," Caranna said. "Now they're asking him (Bontempo) for a court order and they're shifting the burden of proof on him to prove that he's not mentally ill."

Chitwood disagreed, saying Florida Carry is not interested in the overall safety of the community.

"They really don't care about public safety," he said.

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